CPR3701 SUMMARY-EXAM PREP.

Summary Guide: If it is written like this: it means that the source is the SG If it is written like this: the source is from the textbook/gimmenote summary If it is written like this: the source is from an Act (mostly CPA) If it is written like this: the source is from textbook/gimmenote however it is not relevant chapter in tut 102 therefore read only CPR3701 SUMMARY-EXAM PREP. SECTION A: THE CRIMINAL JUSTICE PROCESS IN GENERAL “Section A consists of an overview of the first four phases of the South African criminal procedure. This is a general guideline of the provisions of the Criminal Procedure Act 51 of 1977, according to the sequence and structure in which they appear in the actual legislation. You are not required to commit this portion of the work to memory. The section is intended more as a map, to guide you on the route which is normally followed in the criminal procedure journey.” Sections Process 1-74 The criminal process can be divided into different phases according to the objectives of the process in each phase. The first phase is that part of the process during which the suspected crime is investigated, and it extends from the suspected commission of the crime to the commencement of the trial. 75-270 The second phase is that part of the process during which the trial takes place. This phase extends from the commencement of the trial up to and including the verdict of the court on whether it has been proven beyond reasonable doubt that the accused is, or is not, guilty of the alleged crime. 271-301 If the court finds that the accused is in fact guilty of the crime, the third phase follows during which the court must consider what penalty it should impose. This phase extends from the conviction up to and including the pronouncement of sentence by the court. 302-327 The fourth and last phase consists in the legal remedies that allow the parties concerned to dispute decisions handed down in the course of the trial-and-sentencing phase, and the procedure that has to be followed to make use of the said remedies. This phase extends from sentencing by the court until the moment when the last possible legal remedy has been exhausted by the parties concerned. SECTION B: THE PRE-TRIAL PROCESS, THE TRIAL PROCESS, SENTENCING AND POST-TRIAL REMEDIES “Section B consists of 10 learning units. Unlike in previous study guide editions, where the learning units corresponded precisely with the chapters of the handbook, the structure herein follows a somewhat haphazard pattern. While this method may appear confusing, at first sight, closer scrutiny reveals the method in the madness. That is, the learning units follow the structure, process and overall tone of the criminal justice process as it applies in practice. Each learning unit provides the fundamental outcomes of the particular learning unit, and the interpretive guideline to be used in conjunction with the corresponding chapter of the handbook. This section further indicates specific paragraphs in the handbook, which you are required to study.” LU 1: A BASIC INTRODUCTION TO CRIMINAL PROCEDURE (Chapter 1) (SG sais pay particular attention to the following aspects from Chapter 12 (however it seems like it is contained in Chapter 1. Could be a typo, however, Gimmenotes Summary starts with Chapter 12) 1. THE PLACE OF CRIMINAL PROCEDURE IN THE LEGAL SYSTEM Criminal law forms part of what is termed substantive law. Substantive law comprises legal rules determining the rights and duties of individuals and the state, this includes private and public law. Measures are necessary to enforce the rules of substantive criminal law and these measures are provided by adjective law. Adjective law puts substantive criminal law into action. Criminal procedure is essentially designed to address and protect public rights. Whereas civil procedure is concerned with the vindication of private rights. Criminal Procedure determines the legal steps which must be followed after the commission f an offence. 2. THE SCOPE AND THE CONTENT OF CRIMINAL PROCEDURE Criminal procedure regulates the powers and duties of the criminal court in general as well as all other ancillary functions which operates within the context of the criminal justice system such as prosecution, the duties and powers of the police, the rights of suspects arrested and accused persons, pre-trial proceedings such as bail, charge sheets and indictments, pleadings… etc. The law of criminal procedure has three basic functions: a) Enforce material law: criminal procedure assists and enforces the adjudication of actions which are identified as crimes by the common-law of statutory law. b) Ensure legality in the procedure: the establishment of guilt, innocence or eventual punishment may only be done within the prescripts of criminal procedure. c) Ensure justice: the law makers are invariably obligated to establish a fair and thorough legal process which, as far as possible determines facts without fear or favour. To this extent, criminal responsibility must be determined after a due and balanced consideration of all the incriminating and exculpatory factors. 3. CRIMINAL PROCEDURE IN THE CONTEXT OF THE CONSTITUION The Bill of Rights contains most provisions which protect individual rights in the context of criminal procedure. These include: - S8(1): The BOR binds applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. - S7(2): The state must respect, protect, promote and fulfil the rights in the BOR. - S35 protects various criminal procedural rights, which include: 1) Arrested persons (S35(1)(a)): the right to remain silent; 2) Detained and sentenced prisoners (S35(2)(a)): the right to be informed promptly of the reason for being detained; 3) Arrested persons: a) to a public trial before an ordinary court; b) to be present when being tried; c) to be presumed innocent, to remain silent, and not to testify during the proceedings; d) to adduce and challenge evidence; e) not to be compelled to give self-incriminating evidence; - Section 36: No right is absolute. The limitation clause (s 36) constitutes basis on which rights are enshrined in the Bill of Rights. The provision lists a number of factors which must be considered by the court before a right is limited. These include: a) (a) the nature of the right; b) (b) the importance of the purpose of the limitation; c) (c) the nature and extent of the limitation; d) (d) the relation between the limitation and its purpose; and e) (e) less restrictive means to achieve the purpose. 4. THE PRESUMPTION OF INNOCENCE IN CRIMINAL PROCEDURE Every person who stands accused of an offence before any competent court must be assumed innocent, unless and until evidence is presented which proves otherwise. The following are some of the most notable factors which may affect the presumption of innocence: i. previous convictions As a rule, the CPA explicitly prohibits the use of previous convictions during a criminal trial (s 211). Therefore, the fact that a court is aware of the existence of a criminal record against an accused is calculated to lead to perceptions of unfairness to the accused. Where a presiding officer has previously sentenced an accused person in a different case, it is only fair and appropriate that he or she should recuse himself or herself from the present proceedings. ii. the presumption of innocence and the standard of proof The accused does not bear the responsibility to prove anything to the court. The prosecution is required to discharge its onus beyond any reasonable doubt. iii. the presumption of innocence and the principle of legality 5. CRIMINAL PROCEDURE IN THE CONTEXT OF THE INQUISITORIAL AND ACCUSATORIAL PROCEDURAL SYSTEMS There are distinctions between the accusatorial and inquisitorial models of criminal procedure. The main distinction lies in the functions of the parties, that is, the judicial officer, the prosecution and the defence. In the inquisitorial system (for example, France) the judge is the master of the proceedings (dominus litis), in the sense that he or she actively conducts, and even controls the search for the truth by dominating the questioning of witnesses and the accused. After arrest, the accused is questioned primarily by an investigating judge (not the same as the presiding judge), and not by the police. During the trial, the presiding judge primarily does the questioning, not the counsel for the prosecution or the defence. With accusatorial systems the police are the primary investigative force; they pass the collected evidence on to the prosecution in dossier (file) format, who then becomes dominus litis; the prosecution decides on the appropriate charges, the appropriate court, and so on. In court, the trial takes the form of a contest between two theoretically equal parties (the prosecution and the defence) who do the questioning, in turn leading their own witnesses and cross-examining the opposition’s witnesses. South African criminal procedure has basically been accusatorial. But in certain circumstances a judge may, and sometimes even must, call witnesses of his own. The procedure of questioning that may take place under 115 (plea of not guilty), contains inquisitorial elements, as does part of 112 (questioning pursuant to a plea of guilty); on the other hand, the fact that an accused can be found guilty solely on his plea of guilty without the judge doing any questioning to investigate the “truth”, is a strong accusatorial element (even though it can happen only in the case of relatively minor offences). (Questions and Answers on p. 8-9)